FAN KAI MING v. LAM SUSAN SHUI HING

FAN KAI MING v. LAM SUSAN SHUI HING

The Cancellation Agreement constituted a mutually performed accord and satisfaction that extinguished the Provisional Agreement on its formation; no term making time of the essence for the defendant's payment under clause 2 could be implied; the bounced cheque was a breach of the Cancellation Agreement only and did not amount to repudiation or revive the Provisional Agreement; plaintiff's claims for specific performance and damages in lieu were dismissed.

Citation
FAN KAI MING v. LAM SUSAN SHUI HING
Parties
Purchaser: Plaintiff; Vendor: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
16 December 2016
Case Number
DCCJ2037/2015
Procedural Posture
Contract Specific Performance and Damages / Trial Judgment
Outcome
Judgment for defendant; plaintiff's claims dismissed in their entirety
Legal Topics
Specific Performance, Cancellation Agreement, Accord and Satisfaction, Time of the Essence, Repudiation, Damages in Lieu
Source Language
EN
Contract Property Civil Procedure Specific Performance Cancellation Agreement Accord and Satisfaction Time of the Essence Repudiation +1 more

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Parties

Plaintiff

Purchaser

Defendant

Vendor

Procedural Posture

Contract Specific Performance and Damages / Trial Judgment

Legal Issues

  1. 1 Whether the dishonour of the cheque entitles the plaintiff to treat the Cancellation Agreement as repudiated by the defendant
  2. 2 If repudiation arises, whether the Provisional Agreement is revived so the plaintiff can seek specific performance or damages in lieu

Ratio Decidendi

The Cancellation Agreement constituted a mutually performed accord and satisfaction that extinguished the Provisional Agreement on its formation; no term making time of the essence for the defendant's payment under clause 2 could be implied; the bounced cheque was a breach of the Cancellation Agreement only and did not amount to repudiation or revive the Provisional Agreement; plaintiff's claims for specific performance and damages in lieu were dismissed.

Court Disposition

Judgment for defendant; plaintiff's claims dismissed in their entirety

Orders

  • The plaintiff's claims are dismissed in their entirety
  • The sum of HK$600,131.50 paid into court by the defendant on 28 May 2015 be released to the plaintiff in full satisfaction of the plaintiff's damages for breach of the Cancellation Agreement, with liberty to apply in relation to any matter arising out of the payment out